In re Sirkin

77 A.D.3d 320, 913 N.Y.S.2d 1
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 24, 2010
StatusPublished
Cited by14 cases

This text of 77 A.D.3d 320 (In re Sirkin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sirkin, 77 A.D.3d 320, 913 N.Y.S.2d 1 (N.Y. Ct. App. 2010).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent Kenneth E Sirkin was admitted to the practice of law in the State of New York by the First Judicial Department on November 20, 2000. In 1999 respondent was admitted to practice law in New Jersey and in 2002 he was admitted to practice law in Florida. At all times relevant to the misconduct which underlies this proceeding, respondent maintained an office for the practice of law in Florida. Respondent has not registered with the New York State Office of Court Administration (OCA) since 2001.

By complaint served upon respondent and dated November 26, 2008, the New Jersey District IIA Ethics Committee alleged that respondent violated multiple sections of New Jersey’s Rules of Professional Conduct. The violations alleged stem from respondent’s representation of a client in a personal injury action. Count one of the complaint alleged that respondent failed to keep his client apprised of all events and communications, failed to communicate with her for almost a year, failed to apprise her as to the location of settlement proceeds, failed to notify her of a pending motion, and failed to forward closing papers. It is alleged that respondent violated rule 1.1 of the New Jersey Rules of Professional Conduct (RPC) which states that “[a] lawyer shall not . . . [e]xhibit a pattern of negligence or neglect in the lawyer’s handling of legal matters generally.” Counts two and three of the complaint, premised on the same facts as count one, alleged that respondent violated RPC rule 1.3 which states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client,” and RPC rule 1.4 which states, in part, that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Count four of the complaint alleged that respondent, despite being given numerous opportunities, did not provide a copy of his file nor did he reply to the complaint made against him in violation of rule 1:20-3 of the New Jersey Rules of Court requiring cooperation from an attorney who is the subject a disciplinary investigation. After being served with a copy of the complaint, respondent was sent a letter asking that he interpose an answer and advising him that the failure to do so would constitute an admission to the allegations in the complaint. On October 6, 2009, the [322]*322Supreme Court of New Jersey, after respondent’s failure to appear and after deeming all allegations in the complaint admitted, issued an order suspending him from the practice of law for three months and ordering him to pay costs and expenses incurred in the prosecution of the disciplinary proceeding (200 NJ 271, 979 A2d 768 [2009]).

On December 5, 2008, the Florida Bar served a complaint upon respondent alleging multiple violations of the Rules Regulating the Florida Bar. Count one of the complaint alleged that despite repeated requests both from a former client and her new attorney asking respondent to turn over her file, he failed to do so. It is alleged that respondent violated rule 4-1.16 (d) of the Rules Regulating the Florida Bar (RRFB) which states, in pertinent part, that “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest. . . surrendering papers and property to which the client is entitled.” Counts two, three, five, and seven alleged that in connection with four separate complaints filed against respondent, the Florida Bar sent official inquiries to respondent requesting his written responses. However, respondent provided no responses to the inquiries or to subsequent letters requesting compliance. It is alleged that respondent violated RRFB rule 4-8.4 (g) which states in part that “[a] lawyer shall not . . . fail to respond, in writing, to any official inquiry by bar counsel or a disciplinary agency, as defined elsewhere in these rules, when bar counsel or the agency is conducting an investigation into the lawyer’s conduct.” Respondent, admitting the facts within the complaint, pleaded guilty to all the violations in the complaint and thereafter, on August 13, 2009, the Supreme Court of Florida ordered that respondent be suspended from the practice of law for 10 days and that he pay costs totaling $3,240 (Florida Bar v Sirkin, 17 So 3d 707 [2009] [table; text at 2009 WL 2475290, 2009 Fla LEXIS 1341 (Sup Ct 2009)]).

The Departmental Disciplinary Committee (Committee) petitions this Court for an order pursuant to the doctrine of reciprocal discipline (22 NYCRR 603.3), on grounds that respondent was disciplined for misconduct in both New Jersey and in Florida, disciplining and suspending respondent from the practice of law for a period of six months, or until such time as he complies with Judiciary Law § 468-a, whichever is longer. Noting that New Jersey imposed a three-month suspension, the longest sanction of the two proceedings, the Committee seeks to enhance respondent’s sanction inasmuch as he has failed to reg[323]*323ister with OCA since 2001 as required by Judiciary Law § 468-a and because unlike the courts in both New Jersey and in Florida, this Court is unable to order him to pay a monetary sanction. The Committee served the petition upon respondent and he has failed to interpose any opposition or response. We agree that respondent should be disciplined but we disagree that the sanction should be a six-month suspension.

Pursuant to 22 NYCRR 603.3 (a), an attorney "£who has been disciplined in a foreign jurisdiction, may be disciplined by this court because of the conduct which gave rise to the discipline imposed in the foreign jurisdiction.” Defenses to this disciplinary proceeding are limited to those enumerated in 22 NYCRR 603.3 (c) (22 NYCRR 603.3 [b]; Matter of Stahl 72 AD3d 218, 226 [2010]; Matter of Jarblum, 51 AD3d 68, 70-71 [2008]; Matter of Chang, 57 AD3d 151, 154 [2008]; Matter of Schlem, 308 AD2d 220, 222 [2003]; Matter of Bosies, 217 AD2d 358, 360-361 [1995]), namely: (1) lack of notice and an opportunity to be heard in the foreign disciplinary proceeding; (2) an infirmity with the proof of misconduct presented in the foreign proceeding; and (3) that the foreign misconduct upon which discipline is premised does not constitute misconduct in this jurisdiction.

In reciprocal proceedings, we generally accord significant weight to the sanction imposed by the jurisdiction where the misconduct occurred because the foreign jurisdiction has the greatest interest in fashioning sanctions for misconduct perpetrated therein (Stahl at 227; Jarblum at 71; Chang at 156; Schlem at 222; Bosies at 362). Therefore, when the sanction prescribed by the foreign jurisdiction is not inconsistent with the sanction for similar misconduct in this jurisdiction, the Court should impose the same sanction (Jarblum at 71-72; Matter of Dranov, 14 AD3d 156, 163-164 [2004]). Deviation from the sanction imposed by the foreign jurisdiction is thus rare and warranted only where the sanction imposed by the foreign jurisdiction is at great variance with the sanction generally imposed by this jurisdiction for the same misconduct (Matter of Lowell, 14 AD3d 41, 48-49 [2004], lv dismissed 4 NY3d 846 [2005], lv denied 5 NY3d 708 [2005]).

With respect to the New Jersey proceeding, the record evinces that none of the enumerated defenses preclude resolution of the instant petition in the Committee’s favor.

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Cite This Page — Counsel Stack

Bluebook (online)
77 A.D.3d 320, 913 N.Y.S.2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sirkin-nyappdiv-2010.